Linda Wheeler Tarpeh-Doe v. United States of America

WALD, Chief Judge,

dissenting:

I respectfully dissent from the majority’s conclusion that the Regulations governing the handling of Linda Wheeler Tarpeh-Doe’s medical malpractice claim do not impose any obligation on the agency to determine her claim on the merits, and in accord with minimal due process.

Although the Secretary of State (“Secretary”) is not required under the Federal Tort Claims Act (“FTCA”) to entertain tort claims arising in foreign countries, he has, pursuant to authority granted him in a separate statute, 22 U.S.C. § 2669 (f), issued Regulations to govern the investigation and determination of foreign claims. See 22 C.F.R., Part 31. The majority, however, finds that those Regulations in no way restrict the Secretary’s discretion to deny or grant those claims on non-merit grounds. As government counsel candidly admitted at oral argument, the Department of State (“Department”) feels that as long as the procedures set out in the Regulations are literally followed, the agency deci-sionmaker could ultimately decide after years of investigation and thousands of submissions by the claimant whether to grant or deny a claim by merely flipping a coin; thus, they cannot give rise to a protected interest or entitlement implicating the due process clause.

I find such a crabbed reading of the Regulations to make little or no sense. The Regulations need not and should not reasonably be read to permit the Department to deny a meritorious claim for an indefensible reason, or for no reason at all.

Nowhere in the statute or legislative history authorizing settlement of claims is there any indication that Congress intended to permit agencies to act arbitrarily in granting or denying tort claims. Indeed such a suggestion seems so counterintui-tive as hardly to merit discussion, even though in fact it is the linchpin of the majority’s decision. All indications point in the opposite direction: When Congress provided agencies with the ability to settle FTCA claims administratively, it assumed a merit-based, tort compensation system — a system that would make the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674 .

The FTCA itself was enacted out of a sense that simple justice demanded that individuals be allowed to recover for torts committed against them by the federal government. See H.R.Rep. No. 1287, 79th Cong., 1st Sess. 7 (1945); 1 H.R.Rep. No. 2428, 76th Cong., 3d Sess. 8 (1940); United States v. Muniz, 374 U.S. 150 , 83 S.Ct. 1850 , 10 L.Ed.2d 805 (1962) (Act designed *725 in part to avoid injustice to those having meritorious claims hitherto barred by sovereign immunity). In the FTCA’s statement of purpose, Congress indicated

a desire on the part of the federal government in the interests of justice and fair play to permit a private litigant to satisfy his legal claims for injury or damage suffered at the hands of a United States employee acting in the scope of his employment.

See Committee on the Office of Attorney General, National Association of Attorneys General, Sovereign Immunity: The Tort Liability of Government and Its Officials 43 (1979). Congress clearly intended by the FTCA to create a system through which meritorious claims would be paid. In the 1945 House Report, for example, the Act’s proponents said that the existing system of relying on private bills in Congress was unjust “in that it does not accord to injured parties a recovery as a matter of right but bases any award that may be made on consideration of grace.” H.R. Rep. No. 1287, 79th Cong., 1st Sess. 2 (1945). The Act’s opponents in turn vowed that the members of Congress would be denied the right to determine the merits of a tort claim because that “right and power will be vested in the heads of departments and agencies of Government and in the courts.” Id. at 13.

This theme of justice, fair play, and merit-based determinations echoes through the later amendments to the FTCA, which authorized administrative settlements. In 1966, for example, Congress authorized agencies to administratively settle tort claims in excess of the previous $2,500 limit in order to provide a "more fair and equitable treatment for private individuals and claimants when they deal with the Government,” H.R.Rep. No. 1532, 89th Cong., 2d Sess. 5 (1966), and to enable “claimants who have meritorious claims against the Federal Government to have them disposed of more expeditiously,” by “facilitatpng] their settlement through the use of administrative law procedures.” 112 Cong.Rec. 12,259 (June 6, 1966); 112 Cong.Rec. 14,376 (June 27, 1966). Although there is little legislative discussion of the law extending administrative settlement authority to the Department for foreign-based claims, Congress almost certainly expected the same equity principles to govern the administrative settlement of both foreign and domestic claims. See H.R.Rep. No. 2508, 84th Cong., 2d Sess. 9 (1956).

Indeed, the Department in the past has acknowledged publicly its obligations administratively to carry out the justice purposes of the FTCA. A 1983 letter responding to an inquiry from Senator Robert Dole about a constituent’s tort claim stated explicitly that the Department has a “responsibility to adjudicate medical negligence claims fairly and objectively.” Plaintiffs’ Motion for Partial Summary Judgment on Count IV of Amended Complaint, Exhibit A. A fair and objective adjudication certainly implies more than a coin flip.

To be sure, Congress originally exempted tort claims arising in foreign countries from the reaches of the FTCA altogether. 28 U.S.C. § 2680 (k). But, as the majority and the Department recognize, the Act of 1956 and the promulgation of the Department’s own Regulations pursuant thereto now make foreign-originated claims fully cognizable for administrative settlement purposes. See 22 U.S.C. § 2669 (f); 2 22 C.F.R. § 31.18 . The issue posed starkly by this case is whether those Regulations require the Secretary to pay meritorious claims. I believe that they do; a contrary reading is at best a strained one and at worst a cruelly deceptive one.

In subpart C of the Regulations, the Department authorizes the Secretary to pay tort claims “in the manner authorized in the first paragraph of 28 U.S.C. § 2672 , as *726 amended, when claims arise in foreign countries.” 22 C.F.R. § 31.18 . Section 2672 in turn provides the authority for settling tort claims by administrative agencies “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred_” Section 31.18 continues with a crucial sentence. It says that,

the Federal Tort Claims Act and Sub-part B of this part are applicable to claims filed under the act of August 1, 1956, except that no provision has been made in that act for the institution of suit if a claim is denied.

22 C.F.R. § 31.18 (emphasis added). 3 Thus, critically, the specific part of the Regulations (subpart C) dealing with foreign claims incorporates the principles of the entire FTCA, not just § 2672, with the sole exception of the right of judicial review. And, of course, under § 2674 of the FTCA:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.

28 U.S.C. § 2674 (emphasis added); see also Prosser & Keeton on the Law of Torts, § 131, at 1034 (5th ed. 1984) (describing § 2674 as “general directive” of FTCA). The waiver of sovereign immunity in the FTCA, then, imposes substantive criteria on FTCA determinations that mandate the same result as if a private individual were being sued under similar circumstances. See 22 C.F.R. subpart B, § 31.12 (tort claims are allowable under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred).

In sum, then, the Regulations do explicitly and implicitly assume that an administrative claim, foreign or domestic, will be decided on the same legal and equitable principles that govern court determinations. Otherwise, they must be read as providing superhighway procedures leading nowhere; paper promises designed to sidetrack the intent of Congress and to mislead the supplicant who invokes them. See, e.g., 22 C.F.R. §§ 31.4 , 31.6, 31.7. Admittedly, the Regulations do not themselves specify that the ultimate decisionmaker comply with the recommendation prepared by the investigating officer, or, even that the decision-maker provide a statement of reasons for denying the claim. See 22 C.F.R. §§ 31.6 , 31.10. Nevertheless, they most definitely do incorporate the principle of § 2674 that liability will attach under similar circumstances as in a private sector claim. And, that is sufficient to provide the kind of entitlement to which minimal due process protections must be accorded. See Olim v. Wakinekona, 461 U.S. 238, 249 , 103 S.Ct. 1741, 1747 , 75 L.Ed.2d 813 (1983).

The Department argues that it must be allowed to take foreign policy interests into account in disposing of foreign tort claims. See Supp.Decl. of Ronald J. Bettauer at ¶ 5, J.A. at 97-98. Possibly, the Department could have incorporated some such discretion into its administrative decisionmaking under its Regulations. But, that is not how the Regulations are presently written. Right now, subpart C of the Regulations contains only one exception to the applicability of the FTCA — a foreign tort claimant is not entitled to go to court if a claim is administratively denied. The Regulations most assuredly do not say that a claimant may be led down the yellow brick road of “thorough investigation,” only to be faced at the end with a wizard-like administrator flipping coins behind a screen.

I would affirm the district court’s imposition of minimum due process procedures on the administrative process by which foreign-based FTCA claims are denied.

. H.R.Rep. No. 1287 accompanied H.R. 181, 79th Cong., 1st Sess. (1945). The FTCA, virtually identical in form, was passed by the Second Session of the 79th Congress as Title IV of the Legislative Reorganization Act of 1946.

. 22 U.S.C. § 2669 provides that:

The Secretary of State may use funds appropriated or otherwise available to the Secretary to—

(f) pay tort claims, in the manner authorized in the first paragraph of section 2672, as amended, of Title 28 of the United States Code when such claims arise in foreign countries in connection with Department of State operations abroad.

. The majority discusses these Regulations as they apply to claims arising abroad. However, the main body of the Regulations (subparts A and B) applies to both domestic and foreign claims. Therefore, the majority’s interpretation of the Regulations as not giving rise to any expectation of non-arbitrary treatment applies to both domestic and foreign claims, a problematical result at best. Domestic claimants are of course, permitted to try again in district court.